Waters v Odell[2023] QDC 44

DISTRICT COURT OF QUEENSLAND

Contents

SUMMARY5

THE WITNESSES5

Ms Waters6

Ms Odell 7

THE FACTS11

Early family life11

The House prior to December 201912

Mrs Benn and her daughters up to December 201915

Ms Waters is asked to leave the House 16

Did the House have to be sold?16

The conversations on 27 December 202019

Ms Waters vacates the House20

Condition of the House27

The Will and the Declaration28

Joint account and the sale proceeds33

Mrs Benn’s last months36

Ms Odell dealings with Mrs Benn’s funds37

Payments to Ms Odell’s benefit37

Other transactions38

Conclusions on Ms Odell’s conduct40

THE LAW43

SIZE OF THE ESTATE46

The potential claims against Ms Odell46

Estate at the date of death48

Estate at the date of trial49

Costs issues in the value of the estate50

MS WATERS AS APPLICANT52

Need52

Relationship issues53

RODNEY’S POSITION53

Need53

Relationship issues 54

MS ODELL’S POSITION54

Need54

Relationship issues56

ADEQUATE PROVISION NOT MADE 56

PROVISION TO BE MADE60

OTHER ISSUES65

ORDERS67

SUMMARY

1. [1]
   The applicant (Ms Waters) seeks further provision from the estate of her mother (Mrs Benn) pursuant to s 41(1) Succession Act 1981 (Qld). For the reasons which follow, I have concluded that Mrs Benn’s will of 31 December 2019 (the Will) did not make adequate provision for Ms Waters’ proper maintenance and support as at the date of Mrs Benn’s death. I have also concluded that further provision should be made from Mrs Benn’s estate for Ms Waters in the amount of $280,000.

THE WITNESSES

2. [2]
   Ms Waters is the respondent’s (Ms Odell) older sister. Rodney is their brother. Their parents were Mrs Benn and her husband Mr Benn (who predeceased Mrs Benn by some years). Although there are many facts to consider in this case, there are two principal areas of factual dispute.
3. [3]
   The first relates to a house at Skennar’s Head near Byron Bay (the House). As I explain further below from paragraph [34], Mr and Mrs Benn bought the House in about 1995 and Ms Waters lived there rent free as a single parent with her son, Aaron, from that time until Ms Waters was told to move out of the house by her mother on 27 December 2019. She moved out on 3 January 2020. The first area of dispute concerns the character of the dealings between Mrs Benn, Ms Waters and Ms Odell in relation to the House up to Ms Waters’ eviction, and how those dealings impact on Ms Waters’ claim to provision, bearing in mind her long occupation of the House.
4. [4]
   The second relates to Ms Odell’s dealings with her mother after Ms Waters was required to leave the House. From that time on, (and indeed from a time well before then) Ms Odell was her mother’s principal support and confidant. The dispute is this regard can be summarised as whether, and to what extent, Ms Odell’s version of her dealings with her mother and her mother’s affairs can be accepted. Of particular importance is Ms Odell’s explanation of:

   1. (a)
      Her dealings with Mrs Benn funds generally and the proceeds of sale of the House in particular; and
   2. (b)
      The circumstances of production of a statutory declaration and letter apparently containing Mrs Benn’s instructions which were highly critical of Ms Waters and Ms Waters’ conduct.
5. [5]
   Though there are uncontentious facts which assist in resolution of the issues arising in these areas, the first area of dispute falls to be resolved primarily by reference to the evidence of Ms Waters and Ms Odell and the second falls to be determined by reference primarily to the evidence of Ms Odell. It is therefore necessary to explain my views on the credibility and reliability of those two witnesses, as those views will inform my approach to the specific findings made in these reasons.

Ms Waters

6. [6]
   As is usual with cases of this kind, Ms Waters’ evidence in chief was by affidavit. The only opportunity I had to observe her and consider her responses in areas of conflicting evidence was in her cross examination. Mr Hackett, who appeared for Ms Waters, submitted that her credit was not challenged in cross examination. Ms Brewer, who appeared for Ms Odell, did put her client’s version of some of the key events to Ms Waters, though the cross examination was relatively brief. Further, several of the key areas of factual dispute were not explored in cross examination. Some examples are:

   3. (a)
      Ms Odell’s evidence that the house was left in a dilapidated state when Ms Waters left it in December 2019, which was inconsistent with Ms Waters’ evidence; and

   3. (b)
      Ms Odell’s evidence that from 2006, Mrs Benn seemed upset after calls from Ms Waters, that she overheard aggressive conversations between Mrs Benn and Ms Waters after 2017, and that she observed Mrs Benn in a state of apparent fear and distress during telephone calls in late 2019 about the sale of the House, which was also inconsistent with Ms Waters’ evidence.
7. [7]
   Ms Waters’ affidavit evidence was broadly consistent with the uncontentious facts. Her answers in cross examination were also broadly consistent with such facts. She was not shown in cross examination to have been in error on any important matter and when she said she did not recall matters (which on occasion she did say), those matters seemed to be the sort of matters one might reasonably expect her not to recall in the circumstances of the particular event, given the passage of time.
8. [8]
   From observing Ms Waters I was in no doubt that she is hostile to her sister, and her oral evidence reflected that at times. She also seemed to me to blame her sister for acts which might well have had their genesis with her mother. Such hostility can affect the reliability of recollection and I take it into account in considering her evidence. Further, her evidence related to some events long past, and points of detail can be easily forgotten or overlooked in that context, especially when the overlay is tense family relationships playing out in litigation. Further, my impression is that Mrs Waters had a sense of entitlement to the House (understandable though that was, given the history of her occupation set out more fully below) and on occasions tended to put the best gloss on her evidence relating to that matter and her dealings with her mother. For example, I think it likely that her conversations with her mother around November 2019 when she was asked to move out were tense and probably angry.^[1]

9. [9]
   However, I do not think any of the issues I have just mentioned provided a basis not to accept her evidence as truthful and substantially reliable. Considering her evidence as a whole, I accept her as a witness who was endeavouring to tell the truth as she recalled it and was generally reliable in her recollections.

Ms Odell

10. [10]
    A great deal turns in this case on the credibility and reliability of Ms Odell’s evidence. I do not accept her as credible or reliable.
11. [11]
    As will be seen, it is not in dispute that Ms Odell paid several significant sums (and many small sums) to herself, or for her benefit, from her mother’s funds. Most of these funds were drawn from a joint account she held with her mother (the source of funds paid into this account were indisputably her mother) (the joint account). She explained in her affidavits that those payments were made on her mother’s instructions or for other good reasons, as I will explore further in my detailed findings to follow. However, her evidence about some most these amounts was implausible and very significantly damaged her credibility and reliability. I list just some of those points.
12. [12]
    First, during cross examination, it was shown that (in addition to the amounts she conceded she had received and sought to explain in her affidavit evidence) she had also received a transfer of $55,000 from the joint account^[2] just two days before her mother’s death, and while her mother was in palliative care for the cancer which would soon claim her life. That was a large payment on any view, even more so in the context of her mother’s then resources. However, that payment was never disclosed nor referred to by Ms Odell in her affidavits or correspondence with the applicant’s solicitors. It was first raised with her in cross examination. She cannot possibly have been in any doubt as to the significance, in the context of this trial, of such a large transfer from the joint account, not least because other smaller transfers from the joint account had been contentious in solicitors’ correspondence.
13. [13]
    Ms Odell could give no credible explanation for that transfer and her answers in cross examination were extremely unconvincing.^[3] Her evidence that she could not even recall the transaction was, in my opinion, untrue. I reject it. Her evidence that her mother would have authorised it was, in my view, constructed in the witness box. Further, despite demands from the applicant’s solicitors, Ms Odell only provided the bank statements which showed receipt of this sum into her account during the night preceding the second day of the trial. I find that she sought to conceal that payment, knowing it would damage her if it was revealed. Given the circumstances of the transfer, I do not accept her evidence that she took the money with authority from her mother to do so. The circumstances of that payment, without more, would give me reason not to accept her as a credible or reliable witness.

14. [14]
    Second, in cross examination Ms Odell tried to explain a series of payments made from the joint account for ordinary personal expenses of her own. These payments were small transactions in about February 2020 totalling some $400.^[4] These were explained as being paid from the joint account because she “didn’t have any money left at that time”,^[5] because she was caring for her mother full time. Having committed herself to that proposition, she was shown her bank statements which demonstrated that she had some $13,000 of her own funds at around that time. No credible explanation was given for that incongruity.^[6] In my view, the evidence that those payments were justified because Ms Odell had no money at the time was created by Ms Odell to try to explain away transactions which were embarrassing to her.
15. [15]
    Third, on 11 August 2020, Ms Odell transferred $24,138.32 from the joint account to her personal account.^[7] The transfer was by electronic transfer and had the note on the transfer “fees funeral”. That transfer and note were done by Ms Odell (her mother died on 8 August 2020). No explanation of that sum was included in Ms Odell’s affidavits.
16. [16]
    The point was directly raised by Ms Waters solicitors in their correspondence with Ms Odell’s solicitors dated 17 June 2021,^[8] where a specific request was made for invoices which supported that payment. However, no invoices were provided to Ms Waters’ solicitors,^[9] and no explanation given for the sum transferred.
17. [17]
    On the morning of Day 2 of the trial, an invoice dated 17 August 2020 was provided.^[10] That invoice was for cremation costs of $4,250.^[11] No such invoice existed, of course, on 11 August 2020 when Ms Odell transferred money for “fees funeral” out of the joint account. Ms Odell could give no explanation why that invoice was only provided on day 2 of the trial, despite the earlier request.^[12]
18. [18]
    Insofar as the $4,250 amount is concerned, there is, in any event, a question mark over whether this sum has been paid twice. The interim accounts of the estate solicitors show reimbursement of $5,405 to Ms Odell for “Estate Expenses”^[13] and it is unclear what else this payment could relate to other than funeral expenses. However, that issue was not explored at trial in evidence further, so I put that to one side.

19. [19]
    More fundamental is the fact that the invoice leaves some $20,000 unaccounted for. In the witness box, Ms Odell said that this sum was explicable on the basis that it was money to be paid to have her mother’s ashes put with her father’s ashes. This was seemingly a reference to paragraph 6(c) of the Will which provides that “…I direct my Trustee to arrange the direct cremation of my remains and my ashes to be buried at Nowra with my beloved husband…” In evidence Ms Odell said the balance was held on account of the costs of the interment of the ashes, however, she could give no basis to justify the large sum involved. Further, she conceded she had spent the money and would have to find it from her own funds when the time came to give effect to that clause of the Will. And even now, over two years since her mother’s death, Ms Odell has not carried out the instruction in paragraph 6(c). There is good reason to doubt Ms Odell ever intended to carry out that instruction. Ms Odell’s explanations for taking that sum are not credible. The sum taken as funeral fees was, however, exactly the sum required to bring the balance of the joint account to nil.^[14]
20. [20]
    I find that Ms Odell took the “fees funeral” sum without any proper basis to believe that sum was necessary for funeral expenses. Her real purpose was to clear the balance of the joint account. She deliberately avoided explaining the transfer, or providing any invoice to vouch it, because she was conscious that she could not defend it. Her evidence maintaining the validity of the transfer in cross examination, despite the above matters being drawn to her attention, reveals a person who resists conceding the obvious when it is contrary to her interests, even when it is clear that her conduct is indefensible.
21. [21]
    The above conclusion was confirmed by her untenable position in final submissions. In counsels’ written closing, Ms Odell maintained that I should approach the assessment of the size of the estate based on a “contingent cost of disposal of ashes” estimated to be nearly $20,000.^[15] That was despite still having no evidence that anything like that sum would be involved in the seemingly modest task of burying Mrs Benn’s ashes with her husband. Indeed, there is still no evidence that this can even occur.
22. [22]
    Fourth, as will be seen, one issue which arises in the proceedings is the state of the House when it was handed over by Ms Waters on 3 January 2020. The allegation that the House was in poor condition is central to Ms Odell’s justification for many transactions in the joint account made to her personal benefit between January and August 2020, and indeed to her narrative of events during that period.

23. [23]
    There was a clear dispute between the parties on their affidavits as to the condition of the House at that time. Contemporaneous photographs of the House could well have cast light on the true position and undermine the credit of the party whose version was inconsistent with the photographs. Ms Odell’s affidavit contained no photographs to sustain her version of events. Ms Waters’ affidavit also lacked photographs to back up her version. The latter point is less significant for Ms Waters if the House was not in poor condition, because she would have no reason to think that she needed to document its condition. The same cannot be said for Ms Odell. However, the lack of photographs from Ms Odell would be unremarkable if there were no photographs to include.
24. [24]
    Somewhat surprisingly then, in cross examination, Ms Odell said the following:^[16]

I’ll diverge now. We’re coming to this shortly. There’s not one photograph in existence of what you’ve just said in evidence, is there?---I sent all the photos and text messages to the litigators, so they have all the copies.

No, no. Madam, please focus on the question?---It does exist, sir, because I have it - - -

Madam - - -

HIS HONOUR: No, no. Hold on a second. Mr Hackett’s question was there’s not a photograph in existence of the fortification of the house that you’ve described?---The fortification?

The nailing up of the doors. You understand what I mean, surely?---Yes. Okay. Nailing of the doors. I’m just trying to think if there’s something in some of the documents.

MR HACKETT: Photograph. Any?---Yeah, probably some photographs. I could look into my phone.

Not disclosed in this proceedings?---No. [underlining added]

25. [25]
    And doubling down on that evidence, when asked about paragraphs 171 to 174 of her principal affidavit^[17] which described the damaged state of the House, she said:^[18]

Now, let’s deal with them [indistinct] There’s no photographic evidence of the damage to which you refer, or lack of maintenance, is there?---Yes, there is. I took quite a lot of photos on my phone.

Okay. We’ll deal with it the same way as the last questions and answer. Those photographs have not been disclosed in this proceedings, have they?---Not that I’m aware of. I don’t know if the litigators - - -

Well, you certainly haven’t exhibited them to your affidavit, have you?---It appears not.

26. [26]
    I gave Ms Odell’s counsel time to take instructions before re-examination. She was then re-examined on some matters. There was no re-examination on her evidence that she had photographs of the House on her telephone, nor on her evidence that she had given copies of such photographs to her solicitors. If she had done so, it is very likely indeed that they would have been included in the affidavit. I reject Ms Odell’s evidence that she had photographs on her telephone and that she had given copies to her solicitors. That evidence was a self-serving embellishment constructed in the witness box.
27. [27]
    There are numerous other parts of Ms Odell’s evidence which are improbable or unlikely and which reflect on her credibility and reliability which I will refer to during my detailed findings of fact below. However, for the reasons given above alone, I do not consider her credible or reliable as a witness and will not accept her evidence unless it is supported by other evidence that I accept.
28. [28]
    Ultimately, as will be more fully explained below, the fundamental flaw in Ms Odell’s conduct as attorney, executor and witness is her view that Ms Waters is an undeserving person who should not have benefitted from her mother’s wealth any more than she had up to the time when she moved out of the House. Ms Odell’s conduct criticised in this judgment seems to be explained by that abiding opinion.
29. [29]
    It is a common enough event that a sibling feels resentment at the way a parent has treated another sibling. And it is frequently a feeling harboured by a sibling who feels they have earnt their parents love and support in a way the other sibling has not. The older son in the parable of the prodigal son is just one famous example.^[19] However, it is not a feeling which may properly be indulged by a sibling who is an attorney, personal representative, or witness.

THE FACTS

Early family life

30. [30]
    Ms Waters and her siblings had a stable upbringing. Their father worked in the mining industry and then in various businesses, having some success operating a packaging business. Mrs Benn cared for the family. Rodney is the eldest child. He was born in 1955 and is now 67 years old. Ms Waters was the next child. She was born in 1958 and is 64 years old. Ms Odell was born in 1962 and is 60 years old.
31. [31]
    Rodney did a boilermaker’s apprenticeship and worked in that field for some years, before taking on a nursery business together with his wife and parents. He later moved to other businesses. Ms Waters left high school in year 10 and had a modest work life. After sporadic employment in the CBA and hospitality, she was a single mother caring for her son Aaron and then supported herself by renting out rooms in the House. Ms Odell became a police officer in NSW and has, post her police career, worked in related areas.

32. [32]
    The overall impression I obtained from the evidence is that each of the siblings had on-going relationships with their parents, who as will be seen, supported their children in a substantial way from time to time. One of the difficult transitions to adult life is to convert the common experiences of siblings in childhood into enduring adult relationships. It does not appear that the Benn siblings managed that transition. Rather, the relationships between the siblings became rather distant.
33. [33]
    Mr Benn died in about 1995. I infer that his assets, either by survivorship or by will, passed substantially to Mrs Benn.

The House prior to December 2019

34. [34]
    At the centre of this case is the House. It is important for several reasons, including its place in informing what is adequate provision for Ms Waters based on her long occupancy and the fate of the proceeds of the House after it was sold. Also, the circumstances leading to the sale of the House and the disposition of the proceeds by Ms Odell are central.
35. [35]
    As noted above, Ms Waters had limited education and work skills. In about 1992, aged 34, she married Mr William Waters. They had one child, Aaron Waters. In about 1995, Ms Waters and Mr Waters divorced. Aaron lived with his mother from then on as a single parent, though Aaron’s father paid his school fees.
36. [36]
    Ms Waters received no property settlement and found supporting Aaron difficult on social security. When Aaron was about 3 years old, Ms Waters’ parents bought a block of land and built the House for Ms Waters and Aaron to live in. The House was built in about the second half of 1995. They also bought her a car. Ms Waters efforts to obtain employment once Aaron was “older” (presumably in his teens) were not successful. In her own words:^[20]

45. [45]
    When Aaron was older, I went to TAFE to train in retail. I wasn’t able to stand for long periods of time due to arthritis in my hips and lower back problems so I studied office skills to learn typing to obtain an office job but I couldn’t keep up with the class. As a result, I did not complete the course.
46. [46]
    After I left TAFE, Centrelink pressured me to take any job I could get so I stopped obtaining Centrelink benefits and rented 2 rooms out a (sic) Skennars Head to cover the costs of living. I rented rooms for approximately 2 months.

47. [47]
    I sold my engagement ring so I stopped renting rooms lived of (sic) the proceeds to support myself. I then applied for a government disability pension for arthritis and severe depression. Due to these medical conditions, I obtained the disability pension. To date I still receive the disability pension.

37. [37]
    Aaron continued to live in the House until he completed Year 12.^[21] Ms Waters’ parents, then her mother, always permitted her to live there rent free.
38. [38]
    Ms Waters describes the House as beautiful, with a veggie garden and small orchard which supplied most of her food. It is not hard to accept her evidence that she was happy there. She has always had a very modest income. She could never have afforded to buy a house of any kind. Further, free accommodation plainly underpinned her standard of living, modest though it must have been. On any view of the evidence, the House was the central pillar supporting her lifestyle and standard of living.
39. [39]
    Ms Waters swore that her parents had assured her at the time that the House was built that it would be hers. She swore her father assured her that the House would be left to her when Mrs and Mr Benn were gone. It is likely that some such statement was made. It appears that, at the time, the Benns were reasonably prosperous. They certainly had the resources at around this time to help their other children, though the precise circumstances and extent of such help are contentious.
40. [40]
    Further and more compelling is the concrete steps taken subsequently by Mrs Benn which reflect such an assurance. Ms Waters said that in about 2011 her mother investigated transferring the House to her and Mrs Benn took advice from solicitors and accountants on that course. She said that her mother gave up on that course because of the capital gains tax which would be payable and which Ms Waters could not afford to pay. That account is directly supported by a letter from Mrs Benn’s solicitors, with a draft will enclosed, dated 1 February 2011.^[22] The letter confirms that Mrs Benn sought advice about transferring the House to Ms Waters including on capital gains tax issues, and that Mrs Benn provided instructions for the preparation of the draft will.
41. [41]
    The draft will assumes the occurrence of the transfer in that it does not deal with the House in the text. Also, notably, it contains two clauses which can reasonably be assumed to have been based on Mrs Benn’s instructions:

    1. (a)
       By clause 3.2.1, it leaves the residue of the estate to the three siblings equally; and
    2. (b)
       By clause 7, it contains the following statement:

I CONFIRM that I have treated each of my children equally concerning the division of the remaining assets in my estate. All of the children have received benefits from myself and my late husband prior to making of this Will and I recently transferred the property known as 10 Carroll Avenue, Skennars Head to my daughter Phillipa Anne Waters and have forgiven her debt owing in respect of that property. My husband and I previously assisted both Rodney and Christine in acquisition of homes to the extent of over $200,000 each.

42. [42]
    The draft will also provides a valuable insight into Mrs Benn’s state of mind at the time she gave the instructions referred to by her solicitors. Clause 7, taken with clause 3.2.1, provides a basis to infer that at least in 2011, Mrs Benn did not believe Ms Waters to be undeserving, did not believe her to have been treated better than her siblings, and did not believe she had been abusive or manipulative (in contrast to her apparent beliefs in early 2020, as explained in paragraph [109] - [115] below). Around the time of these events, Ms Odell lived overseas.
43. [43]
    The transfer did not proceed. Ms Waters said that was because she was not able to afford the capital gains tax payable on the transfer. I accept that evidence, not only because there is no suggestion Ms Waters would have ever had excess funds for such a purpose, but also because Mrs Benn plainly sought to achieve the transfer by a CGT efficient manner, that is by her 20 June 2011 will.
44. [44]
    On 20 June 2011, Mrs Benn made a will which, by clause 3, left the House to Ms Waters. It also maintained an even split of the residuary between the three siblings. It is common knowledge, at least amongst solicitors, that transfer of assets by will, generally, does not trigger a liability to CGT. It is reasonable to infer that Mrs Benn was given such advice. The draft will is, therefore, consistent with the views identified in paragraph [42] above.
45. [45]
    The conduct and state of mind revealed by documents prepared with legal advice in 2011 is inconsistent with the hostile indictment of Ms Waters expressed in Mrs Benn’s letter and statutory declaration prepared in early 2020.^[23] More on that later.
46. [46]
    Ms Waters paid the rates on the House^[24] and cared for and maintained it, at least to the extent she was financially able to do so. There is a dispute as to the condition of the House at the time that Ms Waters vacated in early January 2020. I deal with that specific matter from paragraph [97] below. However, I am satisfied that Ms Waters did maintain the House to a reasonable standard during her long occupation. Failure to do so over a 25- year period would have left the House in a decrepit state and even Ms Odell’s version does not go that far.

47. [47]
    I find that from the time the House was constructed, until around late 2019, Ms Waters acted on the assumption, induced by assurances and conduct of her parents, that the House was hers to live in for her life rent free and would come to her after their death.

Mrs Benn and her daughters up to December 2019

48. [48]
    As I have observed, Mr Benn died in 1995. Mrs Benn appears to have continued living in her apartment which she shared with Mr Benn at Burleigh Heads at the time. There is no other evidence as to her assets then or later.
49. [49]
    On 18 November 2002, Mrs Benn appointed Ms Odell as her attorney under an Enduring Power of Attorney (the EPA). She was appointed an attorney for financial and for personal and health matters. No terms were added to the standard short form EPA. For each of the wills in evidence, Mrs Benn appointed Ms Odell as executor. This tends to reflect, I think, a view of Mrs Benn that of her children, Ms Odell was the one she preferred to handle her affairs.
50. [50]
    In about 2006, Mrs Benn was involved in a bus accident and suffered some serious injuries. Ms Odell supported her around this time. Mrs Benn appears to have remined in her Burleigh unit at that stage.
51. [51]
    At some point, around 2011, or perhaps a bit later, Mrs Benn moved into an apartment in a retirement village at Clear Island Waters on the Gold Coast. The move appears to have correlated with a diagnosis of a form of bone cancer, though Mrs Benn appears to have managed to care mostly for herself for some time thereafter. Ms Waters says that the Burleigh unit was sold, though there is no evidence as to what became of the proceeds of sale. It might be that Mrs Benn, directly or indirectly, used some of the proceeds of sale for daily living expenses.
52. [52]
    Ms Odell lived overseas for about seven years ending in about 2017,^[25] so she was not involved in Mrs Benn’s day-to-day care. Ms Waters said that she had on-going and warm contact with her mother over this period and frequently visited her but does not suggest she acted as her carer.
53. [53]
    From 2017, Ms Odell returned to live in Australia. She moved to the Gold Coast for work and from then on, she swears she spent a lot of time with her mother, cleaning, cooking and “discussing [her] mother’s life experiences”.^[26] Despite my rejection of Ms Odell as a truthful or reliable witness, I accept the gravamen of this evidence. Indeed, the evidence supports the conclusion that from about 2017, Ms Odell became Mrs Benn’s principal relationship and principal personal and emotional support, becoming ever more involved in Mrs Benn’s life and decision making until the events starting in November 2019.

54. [54]
    Ms Waters swore that after her sister’s return her contact with her mother became more difficult. She gave the following evidence:^[27]

Over the last few years, it became increasingly difficult to visit the Deceased as Christine was always present when I saw her. Often, Christine would lecture me about my life and she would bully me. Christine was always saying that, ‘You’re leaching off the government and mum.’ I couldn’t bear it so rather than have arguments with Christine, I stopped visiting and spoke to the Deceased on the telephone instead. I spoke to the deceased by telephone at least three times per week until Christine changed the deceased’s telephone number and told me not to contact her.

55. [55]
    There was no challenge to this evidence. Further, it has the ring of truth. Ms Odell, in fact, held the view that her sister was leaching off her mother, reflected inter alia in text message she sent to Ms Waters.^[28]
56. [56]
    As I have noted, Mrs Benn appeared to see Ms Odell as most likely to manage her affairs properly out of her three children. As subsequent findings will reveal, Mrs Benn came to rely entirely on Ms Odell in the management of her affairs, financial and personal, as reflected in events from December 2019 until Mrs Benn’s death on 6 August 2020.

Ms Waters is asked to leave the House

Did the House have to be sold?

57. [57]
    It is uncontentious that on or about 27 December 2019, Mrs Benn and Ms Waters were involved in telephone conversations in which Mrs Benn told Ms Water that she intended to sell the House. Not surprisingly, that precipitated a crisis for Ms Waters. There is no evidence of any prior suggestion that Ms Waters would have to move. The last reliable reference point I have in the evidence as to Mrs Benn’s attitude to the House is the will of June 2011.

57. [58]
    A question then arises as to why the change of heart occurred and occurred so suddenly. There is evidence that Mrs Benn’s reason for selling was that she needed money for her own purposes:

1. (a)
   Ms Odell swears that in the 27 December telephone calls, her mother said “Phillipa, the house has to be sold, I need the money...”.
2. (b)
   The declaration document apparently signed by Mrs Benn and dated 29 January 2020 (the Declaration), purporting to explain her small legacy to Ms Waters in the Will (dealt with in more detail from paragraph [109] – [115] below) stated:^[29]

I was a self-funded retiree, however due to the global financial crisis and loss of funds and decreased superannuation, I found that I did not have enough money to survive and I could not obtain an old age pension due to my ownership of my home that Phillipa was living in rent free, I was ineligible.

59. [59]
    I would not treat these pieces of evidence as reliable without corroboration because:

1. (a)
   Of my rejection of Ms Odell as a credible or reliable witness;
2. (b)
   Of my concerns about Ms Odell’s undue influence over the Declaration; and
3. (c)
   Of the odd nature of the assertions the Declaration contains. The Global Financial Crisis had done its damage to asset values long before June 2011. Yet Mrs Benn clearly had no concerns about her position at that time when she made the 20 June 2011 will.

80. [80]
    The two letters appear to be signed by Mrs Benn on 29 December 2019.
81. [81]
    As I have said, I am inclined to accept Ms Waters’ evidence that these documents were not left at the House by Ms Odell on 29 December, though Ms Waters says she does not retain the original of the document that was left behind. Ms Waters might be mistaken. Certainly, a demand to vacate by 4 January 2020 was included in whatever documents were left. However, even if she is mistaken and these documents were delivered, they represent an aggressive, unjustified, callous and deceptive response to the situation. If they were truly adopted and understood by Mrs Benn, then her behaviour was reprehensible. If the true guiding mind of these two documents was Ms Odell, then her behaviour was of the same character.
82. [82]
    The latter could easily be true because:

    1. (a)
       It is plain from her messages at the time Ms Odell that was an enthusiastic proponent of a callous and aggressive approach to her sister;
    2. (b)
       Ms Odell was, by this time, Mrs Benn’s primary adviser and support; and
    3. (c)
       Ms Odell undoubtedly typed these documents (as she typed the Declaration) because Mrs Benn did not type. This means that Ms Odell had every opportunity to shape the text. She is also the one who found the Act referred to in the Notice.^[37]

The text exchanges with Ms Odell: 29 and 30 December

83. [83]
    On 29 and 30 December, there followed an intense series of texts between Ms Waters and Ms Odell. The exchanges on Sunday, 29 December are of particular significance. They covered just 23 minutes.^[38] They proceeded as follows:

84. [84]
    I note the following:

    1. (a)
       First, Ms Waters purported to accept the offer of funds from the sale to secure a further home. She tried to bargain for the maximum amount offered and to secure that with legal documentation that would ensure money would be deposited to her account “as soon as the sale of the house goes through”;
    2. (b)
       Second, Ms Odell again makes intemperate threats of involvement of the police and forcible ejection and threats of arrest for fraud;
    3. (c)
       Third, despite the character of Ms Waters’ response to the offer of funds for another house, Ms Odell reports that her mother has decided Ms Waters is getting nothing; and
    4. (d)
       Fourth, the tone of the messages from Ms Odell suggests that she, as much as her mother, is making decisions about the conduct of Mrs Benn affairs in relation to the House: i.e. If I don’t see a humble….

85. [85]
    Ms Odell in cross examination suggested that Ms Waters had demanded that the money be paid into her account straightaway and that there was a text to that effect missing from the exchange set out in Ms Waters’ affidavit. When Ms Water’s counsel challenged this she asserted imperiously to the cross examiner: “So there is a message missing sir”.^[39] There is no evidence of any such text. In fact, photos of the text exchange appear in her own affidavit.^[40] I reject her evidence.
86. [86]
    The tenor of text messages sent on 30 December is similar and they need not be set out in full. The gravamen of the exchange is as follows:

    1. (a)
       Ms Waters sends a text in the early hours expressing her anxieties about her personal position, having no rental history, no money for bond and having to find accommodation and removalists over the holiday period;
    2. (b)
       Ms Odell responds stating:

Yes you have had a dream life at mums expense for so long and yet you have no compassion for her circumstances… it is time to take responsibility for your life.

You can rent a room on housemates.com or secure a caravan for a couple of months until it is sold… if you changed your attitude and were grateful and reasonable to work with we could have talked.

If when I attend with the real estate agent tomorrow and gardener you don’t interfere you may store your belongings at the house. Put all in one area as I will be living there until it is sold.^[41]

3. (c)
   It is in response to that stinging text that Ms Waters tries to argue her position with her sister. It is only in that context that Ms Waters stated:

… I’m not going anywhere till I get legal papers stating everything I ask for including money to move. Its either that or big drama and legal costs for both of us. Its your choice. You’ll have to drag me out. And Aaron will film everything. Assault charges… Avo… That will good when applying for work…. Also I have a legitimate claim to pension. So pull your nasty disrespectful head in.

4. (d)
   In my view, that response is understandable, if intemperate, given the conduct of Ms Odell (and to the extent she adopted it, Mrs Benn) to that point. However, Ms Odell seizes on that message to send a series of aggressive texts littered with bullying threats. It gives an insight into Ms Odell’s lack of insight into her own aggressive, callous and bullying behaviour that she quotes only that part of Ms Waters’ text correspondence in her affidavit.^[42]

5. (e)
   Ms Odell’s response includes the assertion (made within 5 minutes of Ms Waters’ message referred to in subparagraph (c) above), that “Mum has a new will to sign today”. There is a copy of that will in evidence. It is in materially the same terms as the Will. There is no suggestion it was the subject of any legal advice. The evidence shows that such advice was not taken until 8 January 2020 from Mrs Benn’s long-standing solicitors. There is no evidence as to how that earlier will came to be drawn or executed, or why it had to be done on New Year’s Eve, but clearly in my view, the creation of that new will was in train from before the 27 December call.

87. [87]
    Ms Odell swore that she “was so concerned for [her] personal safety that [she] arranged to have security attend with [her] on the day the Applicant was due to leave” the House. There is no hint in any evidence before me that Ms Waters was a personal threat to Ms Odell. Ms Odell was consistently the aggressor in her demands and threats before and after the messages set out above. I consider her statement that she was concerned for her personal safety to have been fabricated for self-serving purposes. In this case, to justify the aggressive retaking of possession of the House, which she intended to execute within days.
88. [88]
    Further, in cross examination Ms Odell gave evidence that her concern was about a threat to set her up (presumably based on Ms Waters statement that she would record evidence of her removal if it occurred using force).^[43] Such a “threat” is not a threat to Ms Odell’s personal safety. Again her evidence on this matter was a subtle reconstruction of events designed to justify her own conduct.
89. [89]
    Finally, on this disreputable text exchange, I note Ms Odell made use of her role as a JP to enhance the credibility of her appalling and her palpable hostility to her sister and her sister’s lifestyle.^[44] That is an improper use of that statutory office and calls into question whether Ms Odell is a proper person to hold that office.